CRITIC’S CORNER: Weird science in Wisconsin courts

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 18 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Steven Avery was convicted of murder in 2007. At his trial, the state called numerous scientific experts to help seal his fate. Then, a few years later, Wisconsin adopted the stricter Daubert standard for the admissibility of expert testimony. Had this supposedly tougher standard been in effect earlier, how would it have affected Avery’s trial?

Below is an excerpt from chapter 4 (Weird Science) of my forthcoming book, “Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer” (Prometheus Books, April 4, 2017). The excerpt is reprinted with permission from the publisher (footnotes have been renumbered):

… In theory, there is a legal explanation for how the state was able to pass junk science off as science in Avery’s case. In Wisconsin during that time, there was an incredibly lax standard for the state’s use of expert testimony. … And this lax standard posed a significant problem: the state was always able to use a so-called expert to paint the face of credibility on a garbage case. And even when the defense was able to effectively cross-examine the state’s expert, this would only be meaningful if the jury was interested in, and capable of understanding, nuanced topics such as scientific testing protocols and method detection limits. In many instances, even assuming the jurors had not prejudged the defendant, they simply didn’t care about or understand the scientific concepts being debated at trial. In the end, all they really heard was the government’s so-called expert concluding that the defendant was guilty.

Since Avery’s trial, however, Wisconsin has moved to the nationally recognized Daubert standard for the admissibility of expert testimony. [1] This standard, in theory, is tougher to satisfy. …

However, like many of the legal standards in criminal law, this one is factor-laden and can be twisted and turned as easily as the bookcase in Avery’s bedroom (see chapter 3 [Seek, and (Eventually) Ye Shall Find]). When determining whether the testimony “is the product of reliable principles and methods,” courts can pick and choose from among ten or more factors. …

As soon as Wisconsin announced the change to the Daubert standard for the admissibly of expert testimony, I predicted aloud, to anyone who would listen, that even under this supposedly tougher standard, courts would continue to allow the state to call any so-called expert it wished for any purpose whatsoever. And that is exactly what has happened: “In theory, Wisconsin’s new test for the admissibility of expert testimony is flexible but has teeth. In practice, it’s flexible and has dentures. Literally every Daubert challenge litigated on appeal since [the new law] became effective has failed.”[2]

As a result, jury trials have been indistinguishable from those in the pre-Daubert, anything-goes era of expert testimony. In one Wisconsin case, the appellate court allowed the state to use its expert even when the “expert testimony did not neatly fit the Daubert factors.”[3] The court’s reason: this type of testimony was commonly ruled admissible by “pre-Daubert Wisconsin courts.”[4]

That is rather curious reasoning. The legislature changed the law to take away the anything-goes standard and make it tougher to use so-called experts at trial. It would therefore seem that when the state’s proposed expert testimony does “not neatly fit the Daubert factors,” it should be excluded from evidence. And, when trying to find a way to admit such testimony under the new law, judges should probably not be allowed to rely on decisions from the “pre-Daubert Wisconsin courts,” as this, too, would seem to evade, rather than recognize, the new Daubert standard.

Given the Wisconsin appellate courts’ disdain for Daubert, it is likely that, even if Avery were tried today in the Daubert era, the trial court would still allow the state to use its weird, non-science science at trial. That is, the EDTA test (even without a known method detection limit), the testimony about the burn site (even though entirely speculative at best), and the DNA test (even with its contamination and the analyst’s disregard of testing protocol) may very well be deemed “the product of reliable principles and methods” under Daubert.

When there’s a will (and a handy, flexible, 10-factor test for the court to apply), there’s a way.